Opinion
2017–08123 2018–01360 Index No. 616659/16
03-20-2019
EMPIRE NATIONAL BANK, Appellant, v. GENARD GROUP, INC., et al., Respondents.
Balfe & Holland, P.C., Melville, N.Y. (Lee E. Riger of counsel), for appellant.
Balfe & Holland, P.C., Melville, N.Y. (Lee E. Riger of counsel), for appellant.
JOHN M. LEVENTHAL, J.P., COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.
DECISION & ORDER ORDERED that the appeal from the order dated December 7, 2017, is dismissed; and it is further,
ORDERED that the order dated June 5, 2017, is reversed insofar as appealed from, on the law, with costs, and the plaintiff's motion for summary judgment on the complaint is granted.
The appeal from so much of the order dated December 7, 2017, as, in effect, denied that branch of the plaintiff's motion which was for leave to reargue must be dismissed, as no appeal lies from an order denying reargument (see Gentry v. Mean , 166 A.D.3d 583, 583, 86 N.Y.S.3d 624 ; Matter of Robinson , 30 A.D.2d 702, 702, 291 N.Y.S.2d 919 ). The appeal from so much of the order dated December 7, 2017, as, in effect, denied that branch of the plaintiff's motion which was for leave to renew must be dismissed as academic in light of our determination on the appeal from the order dated June 5, 2017.
The plaintiff commenced this action against the defendants Genard Group, Inc. (hereinafter Genard Group), and Yolanda Alicea to recover on a promissory note and a personal guaranty on the note. Thereafter, the plaintiff moved for summary judgment on the complaint. In an order dated June 5, 2017, the Supreme Court, inter alia, denied the plaintiff's motion. The plaintiff moved for leave to renew and reargue its prior summary judgment motion. In an order dated December 7, 2017, the Supreme Court, in effect, denied the plaintiff's motion for leave to renew and reargue. The plaintiff appeals from these orders.
On its motion for summary judgment on the complaint, the plaintiff made a prima facie showing of its entitlement to judgment as a matter of law by submitting evidence of the existence of an underlying promissory note and personal guaranty, and the defendants' failures to make payment in accordance with the terms of those instruments (see Cadlerock Joint Venture, L.P. v. Homesell, Inc. , 136 A.D.3d 853, 854, 24 N.Y.S.3d 913 ; Nunez v. Channel Grocery & Deli Corp. , 124 A.D.3d 734, 735, 998 N.Y.S.2d 663 ; TD Bank, N.A. v. Clinton Ct. Dev., LLC , 105 A.D.3d 1032, 1035, 965 N.Y.S.2d 129 ; see also CPLR 105[u] ).
We disagree with the Supreme Court's determination that the defendants raised a triable issue of fact in opposition to the motion. Although Alicea asserted in her affidavit submitted in opposition that she discussed with a representative of the plaintiff the "possibility" of changing the loan and payment schedule, Alicea did not assert that there had been an oral modification. In any event, an oral modification would have been unenforceable under the circumstances (see General Obligations Law § 15–301[1] ; Bank of Smithtown v. 264 W. 124 LLC , 105 A.D.3d 468, 469, 963 N.Y.S.2d 176 ). Moreover, Alicea's assertions to the effect that she could not be personally liable conflicted with the unambiguous terms of the commercial guarantee she signed, as guarantor, obligating her for the debt of the borrower, Genard Group (see HSBC Bank USA, N.A. v. Laniado , 72 A.D.3d 645, 645–646, 897 N.Y.S.2d 514 ; PNC Capital Recovery v. Mechanical Parking Sys. , 283 A.D.2d 268, 270–271, 726 N.Y.S.2d 394 ).
Accordingly, we disagree with the Supreme Court's determination denying the plaintiff's motion for summary judgment on the complaint.
LEVENTHAL, J.P., DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur.